Articles Posted in Forms for Tennessee Tort Practice

TennCare has a statutory subrogation interest provided by Tenn. Code Ann. sec. 71-5-117. Under the statute, once a personal injury plaintiff’s attorney is on notice that TennCare has an interest, the attorney has an obligation to contact TennCare or the plaintiff’s managed care organization “before the entry of a judgment or settlement” to find out the amount of TennCare’s asserted subrogation interest. Tenn. Code Ann. sec. 71-5-117(g). TennCare’s subrogation interest is often small in comparison to the tort victim’s damages, if for no other than reason than the amount that health care providers write off from the patient’s medical expenses when accepting payment from TennCare. When a plaintiff’s damages bump into the available insurance policy limits, however, TennCare’s subrogation interest can be a significant barrier to accepting a reasonable settlement. Fortunately, Tenn. Code Ann. sec. 71-5-117 provides a remedy if TennCare or its MCO will not accept a reasonable reduction – a hearing by the trial judge to adjudicate TennCare’s subrogation amount.

In essence, Tenn. Code Ann. sec. 71-5-117 codifies both the “made whole” rule and the “common fund” rule, reducing TennCare’s recovery by the same factors that the plaintiff faces in evaluating a settlement.

First, the trial judge determines TennCare’s gross subrogation interest. The court looks to the medical expenses that the plaintiff could expect to prove at trial. The court also hears evidence introduced about TennCare’s total payments for those medical expenses. Tenn. Code Ann. sec. 71-5-117(g).

This is a basic complaint for personal injuries arising out of a motor vehicle accident with an individual defendant. Download file. It contains allegations of common law negligence and negligence per se, but does not provide for vicarious liability of any parent or employer.
Note that the prayer for relief does not include a specific monetary amount in the ad damnum. Tenn. R. Civ. P. 8.01 does not require a specific dollar amount when initiating suit, and using an open-ended ad damnum like the one in this complaint can help you avoid prematurely valuing a case. However, a long history of Tennessee case law says that a plaintiff cannot recover a penny more than the amount specified in her complaint. See generally, Gaylor v. Miller, 166 Tenn. 45, 59 S.W.2d 502, 504 (Tenn.1933). You must amend the complaint to state a specific ad damnum amount before trial or moving for default judgment. Also, be wary of waiting until the last minute to declare an ad damnum – a trial court does not abuse its discretion by denying a motion to amend to substantially increase the ad damnum amount on the eve of trial. See Benson v. Tennessee Valley Electric Co-op., 868 S.W.2d 630 (Tenn. App. 1993).

One final note on the ad damnum amount: the Tennessee Product Liability Act contains a statutory exception requiring the complaint “state an amount … sought to be recovered from any defendant.” Tenn. Code Ann. ㋔ 29-28-107. If you are filing a product liability case, you should state an ad damnum at the outset.